Challenge to Accuracy of Breath Test Results in Pennsylvania heading to the State Supreme Court

Unlike under Massachusetts OUI Law, in some jurisdictions, the statutory penalties of driving under the influence vary depending on blood-alcohol measurements as determined by a breathalyzer exam or blood test. While trial courts across the nation are becoming increasingly skeptical of breathalyzers, the Pennsylvania Superior Court recently reversed a trial judge’s decision to dismiss a heightened DUI charge on a finding that breathalyzers are inaccurate. In Massachusetts, the statutory penalties are essentially the same regardless of the breath test results other than for drivers under 21 and other than the additional requirement of an alcohol assessment; of course, a judge is likely to impose a harsher punishment with a higher breath test result.

Last December a trial judge in Pennsylvania rejected a prosecutor’s attempts to prove the defendant, in the case of State v. Schildt, guilty of a heightened DUI statutory charge by presenting results from a breath test as evidence of the defendant having a BAC reading of 0.16 percent. A reading of 0.16 percent or greater qualifies a defendant in Pennsylvania for the maximum penalty under the DUI statute, with increased prison time and fines.

After hearing arguments from both parties, Judge Lawrence Clark Jr. ruled that breathalyzers are not scientifically accurate beyond a 0.15% blood-alcohol reading. Judge Clark Jr. then concluded that without an accurate blood-alcohol reading, the State will not be able to prove beyond a reasonable doubt that the defendant Schildt was so intoxicated so as to qualify him for the heightened statutory sentence. He therefore dismissed the charge.

The Superior Court of Pennsylvania reviewed the appeal filed by the District Attorney, and reversed the judge’s decision on September 5th. The Superior Court held that issues regarding the accuracy of breathalyzers go to the weight of the evidence presented against Mr. Schildt, and so should be raised and challenged at trial. The Court did not address the accuracy of breathalyzers, however. It merely held that a trial is necessary to determine whether, given possible inaccuracies of breath test readings above 0.15%, the State would still be able to prove beyond a reasonable doubt that Mr. Schildt was sufficiently intoxicated to be subject to the maximum penalty under the DUI statute. The news account of this case was reported by the Patriot News and posted on Pennlive.

The problem with the judge’s decision that the jury can weigh the evidence is that it negates the job of the trial judge to act as a gatekeeper to ensure that the jury only hears reliable evidence. The burden of proving the reliability of breath test evidence is on the State and the judge’s decision essentially shifts the burden to the defendant to prove the results are inaccurate. The jury is presented with evidence that appears scientific, but has not been tested sufficiently to permit the jury to hear the evidence as if it is reliable. Since the breath test machine in Pennsylvania has never been tested for accuracy for results above .15, there is no basis for the jury to conclude those results are accurate.

Although Mr. Schildt’s matter has yet to be tried and resolved, the trial court’s findings of inaccuracy of breathalyzer readings over 0.15% has already had a substantial effect on prosecution of DUI cases in Dauphin County – where Mr. Schildt was charged. Following the initial dismissal of Mr. Schildt’s case, 19 other DUI cases in Dauphin County were dismissed in accordance with Judge Clark’s findings.

Schildlt’s defense attorney, Justin McShane, plans to appeal the reversal to the state Supreme Court in an attempt to preserve the dismissals of these cases and to bar prosecutors from relying on breathalyzer readings to prove a defendant’s guilt of the heightened statutory charge across the entire state. The DUI Lawyer in this case explains his arguments challenging the accuracy of the breath test results on his Blog the Truth About Forensic Science.

The Pennsylvania trial court’s decision scrutinizing breathalyzer accuracy is only one of several recent decisions made by trial and appellate judges nationwide challenging breath test results offered as evidence against DUI defendants. DUI Lawyers should continue to promote judicial awareness of the often unreliable and highly prejudicial nature of this type of evidence in DUI cases.

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